Quality of Expert Testimony Questioned in Death Penalty Appeal

The importance of expert witnesses in constitutional challenges to execution by lethal injection was highlighted by an ExpertPages blog post last year about an anesthesiologist who decided he would no longer testify for states in defense of their death penalty procedures. The anesthesiologist was concerned that his expert testimony would run afoul of the American Board of Anesthesiology’s rule forbidding its members from assisting in the creation of death penalty procedures.

The issue of expert testimony in death penalty cases recently resurfaced when the Supreme Court heard oral arguments in an Eighth Amendment challenge to Oklahoma’s procedure for administering lethal injections. One of the controversies in that case surrounds the quality of the expert testimony that Oklahoma relied upon.

The Controversy Before the Court

Constitutional challenges to lethal injections are based on the claim that the “drug cocktail” typically used by executioners violates the Eighth Amendment’s prohibition of “cruel and unusual” punishments. Experts retained by defense lawyers typically testify that the drugs fail to render the condemned prisoner unconscious, causing the prisoner to suffer severe pain before the onset of death.

Most states that execute prisoners by lethal injection use three drugs: an anesthetic that is supposed to render the prisoner unconscious, a paralytic drug, and a drug that stops the heart. Drug companies that manufacture the two anesthetics commonly used in executions have stopped supplying them to state governments, primarily because those drugs are manufactured in countries that object to the death penalty.

Five states, including Oklahoma, decided to substitute a drug called midazolam as the anesthetic in the three drug protocol. Lawyers for Oklahoma’s death row inmates produced evidence that prisoners who were given midazolam during their executions experienced excruciating pain before they died, although they were unable to speak due to the paralytic.

A dozen pharmacology professors, lending their expertise as “friends of the court,” expressed the opinion that midazolam is not an appropriate substitute for the anesthetics that were used in earlier procedures. A key section of the brief they filed with the Supreme Court is captioned “Midazolam is Incapable of Rendering an Individual Unconscious.”

Oklahoma’s Expert Witness

Oklahoma’s expert witness, Dr. Roswell Lee Evans, testified in earlier court proceedings that inmates who received a sufficient dose of midazolam would be anesthetized. In his words, within two to five minutes after the administration of midazolam, “I doubt very seriously if any pain would be felt.” He acknowledged that a prisoner would likely feel severe pain from the administration of the second and third drugs if midazolam did not render the prisoner unconscious.

Dr. Evans is a board certified pharmacist. He is also the dean of the Harrison School of Pharmacy at Auburn University. While Dr. Evans’ credentials are impressive, he testified that he has no personal experience with the administration of midazolam to patients. He based his opinions on an extrapolation of the effects that might be produced by higher doses of midazolam than those that are given for therapeutic purposes.

The pharmacology professors who filed the Supreme Court brief disagree with Dr. Evans. They contend that midazolam has a “ceiling effect” and that higher doses do not increase the drug’s potency. All of the experts agree that, given its potential lethality, high doses of midazolam have never been tested on humans in a clinical experiment.

Dr. Evans’ Reliance on Drugs.com

It is common for experts to disagree. More problematic is that Dr. Evans appears to have based the opinions he expressed in his expert report largely on information he gleaned from Drugs.com, a consumer website that warns readers not to rely on its content as medical advice.

One of the pharmacology professors who joined the Supreme Court brief criticized Dr. Evans for relying on a consumer website instead of scientific studies. She suggests that experts should rely on primary literature, not on simplified explanations that appear on consumer websites.

Dr. Evans’ reliance on Drugs.com did not escape the notice of Supreme Court Justice Sonia Sotomayor. In an opinion dissenting from a refusal to stay an execution earlier this year, Justice Sotomayor called attention to Dr. Evans’ reliance on Drugs.com rather than scientific studies to support his opinion. Justice Sotomayor wrote that she was “deeply troubled by this evidence.”

While Dr. Evans defended his report on the ground that Drugs.com includes “outstanding references,” experts who rely on “dumbed down” explanatory materials rather than primary sources risk having their opinions discredited. Perhaps the pool of expert witnesses who are willing to testify in favor of lethal injection methods is running dry, but state governments cannot expect to make a convincing case when they rely on witnesses who rely on consumer websites to support their expert opinions.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.